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October 5, 2005

Third major NY Times piece on lifers

The third piece of an impressive New York Times series of articles on life sentences, which focuses on life without paroel and the relationship of this sentence to the death penalty, can be found here. (Prior articles in the series are discussed here and here.) A fascinating passage from this latest article spotlights a point I have often made in my sentence classes: if I was innocent but convicted of murder, I would rather be sentence to death than to life. Here's why:

Some defendants view the prospect of life in prison as so bleak and the possibility of exoneration for lifers as so remote that they are willing to roll the dice with death. In Alabama, six men convicted of capital crimes have asked their juries for death rather than life sentences, said Bryan Stevenson, director of the Equal Justice Initiative of Alabama.

The idea seems to have its roots in the experience of Walter McMillian, who was convicted of capital murder by an Alabama jury in 1988. The jury recommended that he be sentenced to life without parole, but Judge Robert E. Lee Key Jr. overrode that recommendation and sentenced Mr. McMillian to death by electrocution.

Because of that death sentence, lawyers opposed to capital punishment took up Mr. McMillian's case. Through their efforts, Mr. McMillian was exonerated five years later after prosecutors conceded that they had relied on perjured testimony. "Had there not been that decision to override," said Mr. Stevenson, one of Mr. McMillian's lawyers, "he would be in prison today."

Other Alabama defendants have learned a lesson from Mr. McMillian. "We have a lot of death penalty cases where, perversely, the client at the penalty phase asks to be sentenced to death," Mr. Stevenson said.

Judges and other legal experts say that risky decision could be a wise one for defendants who are innocent or who were convicted under flawed procedures. "Capital cases get an automatic royal treatment, whereas noncapital cases are fairly routine," said Alex Kozinski, a federal appeals court judge in California.